APPEAL from the Circuit Court of Cook County; the Hon. REUBEN
J. LIFFSHIN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
In this action for declaratory judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) plaintiff seeks a declaratory judgment that he is the owner of a valuable painting. Essentially, plaintiff maintains that the painting was sold to him by James Paul DeLaney on August 18, 1970. A cloud over plaintiff's title was created in 1974 when defendant Jeannette DeLaney, in her divorce action against her husband James Paul DeLaney, claimed "special equities" in the painting as marital property. Plaintiff filed this action to end that controversy. Following a bench trial, the trial court found the purported sale of the painting from James Paul DeLaney to plaintiff was void because of inadequate consideration and lack of delivery. On appeal from that judgment, Jeannette DeLaney is the sole appellee.
Defendants were married on January 17, 1953. Approximately three to five years later, they acquired a painting allegedly the work of Peter Paul Rubens and entitled "Hunting of the Caledonian Boar" (hereinafter the painting). This painting was a part of the art collection acquired by the defendants during their marriage. In 1966, defendants moved into an apartment building in which the plaintiff and his wife resided. The two couples soon became friends. Jeannette DeLaney characterized the friendship between plaintiff and her husband as "casual" for the next four years. After 1970, however, she noticed that plaintiff and her husband had become close friends, and in fact, the two couples went on a vacation together.
On August 18, 1970, James Paul DeLaney purportedly sold the painting to plaintiff for $10 and "other good and valuable consideration." A written contract, embodying the terms of the agreement, was prepared and signed by plaintiff and James Paul DeLaney. Jeannette DeLaney was not a party to that contract. The painting was then brought to plaintiff's apartment where it was hung on the wall.
When asked what the contract term "other good and valuable consideration" meant to him, plaintiff stated:
"That to me and Mr. DeLaney means our friendship and favors that we have done; and as you put it earlier, the love and affection that one had for another. Mr. DeLaney didn't have any children, and I assume he looked upon me as a son."
Under cross-examination, plaintiff was asked whether he gave James Paul DeLaney anything else other than $10 and love and affection in exchange for the painting. Plaintiff responded: "No, not really."
At the time of the sale of the painting, plaintiff believed it was worth $100,000 if not authenticated as a Rubens original, and if authenticated, several hundred thousand dollars. James Paul DeLaney told plaintiff the painting was a genuine Rubens. Plaintiff, however, had no formal education in art and had no experience in art research.
During the next four years, plaintiff stated that the painting was either in his apartment or in DeLaney's. The painting apparently never remained in plaintiff's apartment for a sustained period of time. Since James Paul DeLaney was plaintiff's agent for the purpose of selling the painting, it was kept in DeLaney's apartment to be viewed by prospective buyers. Both plaintiff and DeLaney felt the painting's value would be enhanced if viewed by prospective buyers with the rest of the DeLaney art collection. Also, plaintiff considered the painting to be safer in DeLaney's apartment. Despite plaintiff's concern for the safety of the painting, he never insured the painting during this period.
According to Jeannette DeLaney, the painting hung on the south wall of the sunroom of their apartment during the years 1970 to 1974. It was only removed from the apartment for art exhibitions and restoration work. At no other time was she aware that the painting was outside her apartment.
Mrs. DeLaney denied that she was ever informed by her husband that the painting had been sold to plaintiff. Nor did plaintiff mention this transaction to Mrs. DeLaney. She stated that she first became aware of plaintiff's claim of ownership in 1974 during the course of her divorce proceedings.
Irving Friedin, a friend of the plaintiff, visited plaintiff's apartment approximately 40 to 50 times during the period from August 1970 to December 1974. On one of those visits, he recalled seeing the painting inside the plaintiff's apartment.
In Jeannette DeLaney's complaint for divorce, filed in 1974, she claimed "special equities" in the painting and prayed for an equitable share thereof. Although plaintiff was, in his own words, a good friend of the DeLaneys, he was unaware of the marital problems confronting the couple or that Mrs. DeLaney had filed for divorce. On December 19, 1974, Mrs. DeLaney obtained an injunction enjoining her husband from transferring or encumbering the title to the painting. In an affidavit, filed January 8, 1975, on behalf of James Paul DeLaney, plaintiff stated that the painting had been placed in storage on December 12, 1974. More specifically, plaintiff stated: "On or about December 12, 1974, I personally examined certain works of art owned and possessed by Mr. James Paul DeLaney and assisted in their placement in certain vaults on the premises of Reebie Storage and Moving Company, Inc." (Emphasis added.) Identified as one of these works of art was the painting allegedly sold to plaintiff on August 18, 1970.
After a full hearing on May 11, 1976, the trial court, which was hearing the divorce action, found the purported sale of the painting by James Paul DeLaney to plaintiff void. According to the trial court, this hearing was conducted on "the Petition of NICHOLAS T. O'NEILL which petition was in fact a motion by JAMES PAUL DeLANEY for the release of a certain painting presently held under a court injunctive order at the Reebie Storage and Moving Co., Inc., said motion on behalf of defendant [James Paul DeLaney] having been previously filed on behalf of the defendant ...